Written Testimony of LCAV to the Washington, DC Council

Testimony of Juliet A. Leftwich Legal Director Legal Community Against Violence

Bill 17-843 “Firearms Control Amendment Act of 2008�

Committee on Public Safety and the Judiciary Council of the District of Columbia Phil Mendelson, Chairperson

October 1, 2008

John A. Wilson Building 1350 Pennsylvania Ave., N.W. Washington, D.C. 20004

Good morning. My name is Juliet Leftwich and I am the Legal Director of Legal Community Against Violence (LCAV), a national law center formed in the wake of an assault weapon massacre at a San Francisco law firm in 1993. We provide free legal assistance to state and local governments seeking to adopt or defend laws to reduce gun violence. We also track all federal, all state and many local gun laws. In addition, we engage in educational outreach and advocacy, producing reports, analyses and model laws. 1 LCAV’s website, www.lcav.org, is the most comprehensive resource on U.S. firearms laws in either print or electronic form.

LCAV has helped many state and local policymakers develop and draft strong, legally defensible laws to reduce firearm-related deaths and injuries. I’m pleased to be here today to provide our recommendations regarding the ways Washington, D.C. can strengthen its gun laws in the aftermath of the U.S. Supreme Court’s decision in District of Columbia v. Heller.

Although I support each of the ideas discussed by the other expert witnesses on this panel today, my testimony will focus on laws relating to registration of firearms, licensing of gun owners/firearms safety training, firearms dealers, safe storage and waiting periods.

Registration of Firearms Strong registration laws are the cornerstone of responsible gun policy. These laws are critical because they • • • • •

Furnish law enforcement with essential information about firearm ownership, facilitating fast and reliable tracing of crime guns; Protect law enforcement officers responding to calls for assistance (e.g., in domestic violence incidents) by allowing the officers to determine, in advance, whether the individuals involved possess firearms; Facilitate the return of lost or stolen firearms to their lawful owners; Reduce illegal guns sales and possession by ensuring, through periodic background checks, that all registered owners are eligible to possess firearms under applicable federal, state and local law; and Permit law enforcement to charge an individual with a crime if he or she is in possession of an unregistered gun, and to seize the unregistered weapon.

Opinion polls show overwhelming public support for registration laws. A 2001 national poll showed 83% of respondents, including 72% of gun owners, favor registration for newly-purchased handguns. 2 Although the District of Columbia currently has a firearm registration system in place, registration is only required on a one-time basis. As a result, persons who initially pass a 1

See, e.g., Legal Community Against Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws (2d ed. 2008).

2 Lake, Snell, Perry & Associates, Inc. Poll, Educational Fund to Stop Gun Violence (May 15-21, 2001).

2

background check may subsequently become ineligible to possess firearms (e.g., because of a criminal conviction), yet remain in possession of those firearms.

The most important way to strengthen the District’s registration laws would be to require that registration be renewed annually after the owner undergoes a background check.

This would help ensure that persons who have fallen into a prohibited class do not continue to possess firearms. It would also increase gun owner accountability and responsibility by requiring gun owners to account for their firearms on a yearly basis.

Annual renewal of registration would not impose an undue burden on gun owners – it could be completed through the mail at a reasonable cost.

This recommendation is consistent with the Supreme Court’s ruling in the Heller decision. In that decision, the Court narrowly held that the Second Amendment guarantees the right of individuals to possess handguns in the home for self-defense.

Registration laws do not interfere with that right.

A variety of registration laws have been adopted by state and local governments throughout the nation, including Hawaii, California, Michigan, 3 Chicago, Cleveland, New York City and Omaha. 4 Licensing Gun Owners/Firearms Owner Safety Training Laws requiring gun owners to obtain a license (or permit) and to undergo safety training have two primary goals: 1) to reduce the number of unintentional shootings by ensuring that gun owners know how to safely use and store firearms; and 2) to increase compliance with existing firearms laws by requiring gun owners to demonstrate knowledge of those laws.

Americans strongly support licensing laws. A nationwide poll conducted in 2001 found that 85% of respondents – including 73% of gun owners – favored laws requiring purchasers to obtain a permit before buying a handgun. 5 Although the District does not currently require gun owners to obtain a separate license, the District’s registration laws contain some license-like provisions. Specifically, those laws require an applicant for a registration certificate to “demonstrate satisfactorily a knowledge of the laws of the District of Columbia pertaining to firearms and the safe and responsible use of the same in accordance with tests and standards prescribed by the Chief.” 6 3

Mich. Comp. Laws § 28.429. While Michigan does not require registration per se, it does require persons acquiring handguns to present the handgun to local law enforcement for a safety inspection.

If the person presenting the handgun is eligible to possess it, a certificate of inspection will be issued reflecting his or her name, age, address, description and signature, as well as a full description of the handgun. Copies of the certificate are kept by state and local law enforcement, thereby creating a record of all legally acquired handguns possessed in the state and their owners.

4 See Legal Community Against Violence, supra note 1, at 190-195.

5 Lake, Snell, Perry & Associates, Inc., supra note 2.

6 D.C. Code Ann. § 7-2502.03(a)(10).

3

The District’s laws could be strengthened through the enactment of either a separate licensing law or an amendment to the existing registration provisions requiring applicants to successfully complete a firearms safety training course. We recommend that the course include classroom instruction on the safe handling, use and storage of firearms, and on federal and District laws pertaining to gun sales, possession, transportation and self-defense use. The course should also include live firing instruction to ensure that the applicant knows how to safely fire the weapon. Applicants should be required to pass written and hands-on tests prior to completing the course.

Reasonable licensing/firearms safety training laws have been adopted widely by state and local governments throughout the United States, 7 and do not violate the Heller decision.

Licensing laws are most effective when combined with registration laws (discussed above). A 2001 study analyzing the firearm tracing data of crime guns recovered in 25 U.S. cities revealed that states with some form of both registration and licensing systems have greater success keeping firearms initially sold by dealers in the state from being recovered in crimes than states without such systems in place. 8 This suggests that licensing and registration laws may make it more difficult for criminals, juveniles and other prohibited purchasers to obtain guns.

An Opinion Research Corporation International poll in 2001, found that 82% of the respondents supported laws requiring the licensing and registration of handguns. 9 A nationwide poll conducted in May of 2001 found that 70% of the respondents mistakenly believed that a system of licensing and registration already exists. 10 Firearms Dealers Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) records from November 2007 indicate that 5 firearms dealers operated in the District at that time. 11 We would anticipate that that number would grow in response to the Heller decision.

It is very important that the District regulate dealers because so little regulation exists at the federal level, and because dealers are a significant source of crime guns nationwide.

Current federal dealer regulations – and the enforcement of those regulations – are insufficient to ensure that the public is safe from unscrupulous dealers. In June of 2000, ATF issued a comprehensive report of firearms trafficking in this country. That report 7

See Legal Community Against Violence, supra note 1, at 178-186.

Daniel W. Webster et al., Relationship Between Licensing, Registration, and Other Gun Sales Laws and the Source State of Crime Guns, 7 Inj. Prevention 184, 188-89 (2001). The study included jurisdictions with concealed carry permits and dealer sales reporting, which have elements of licensing or registration but are not comprehensive licensing or registration systems.

9 Lois Hess, Editorial, Bush Undermining Gun Control Laws, Balt. Sun, July 31, 2001, at 11A, available at http://www.commondreams.org/views01/0731-03.htm.

8

10

Lake, Snell, Perry & Associates, Inc., supra note 2.

11

Bureau of Alcohol, Tobacco, Firearms & Explosives, U.S. Department of Justice, Federal Firearms Licensee List (Class 01 Dealers) (report issued Nov. 16, 2007).

4

analyzed 1,530 trafficking investigations during the period July 1996 through December 1998, involving more than 84,000 diverted firearms. 12 ATF found that firearms dealers were associated with the largest number of trafficked guns – over 40,000 – and concluded that the fact that dealers have “access to large numbers of firearms makes them a particular threat to public safety when they fail to comply with the law.” 13 Moreover, a 2004 report of the U.S. Department of Justice Office of the Inspector General found that ATF’s compliance inspections of firearms dealers are “infrequent and of inconsistent quality, and follow-up inspections and adverse actions have been sporadic,” even where numerous or serious violations were found. 14 Another study found that in 2000-2002, ATF prosecuted only 88 corrupt gun dealers nationwide. 15 The District already regulates firearms dealers to some extent. Existing District laws could be significantly strengthened, however, by requiring dealers to: • • • • • • •

Conduct employee background checks (currently, there is no way for a dealer to know whether his/her employees are prohibited from possessing firearms); Immediately report the loss/theft of all firearms or ammunition; Conduct an annual inventory of all firearms and ammunition and provide a sworn affidavit with the inventory list to the Police Department; Videotape all firearm sales transactions; Install burglar alarms on their premises; Post a conspicuous notice advising customers of the District’s safe storage laws, and that background checks are required for all gun transfers; and Sell a trigger lock or other locking device with each firearm (ideally the law would require that the locking device be on the roster of devices approved by California, Maryland or Massachusetts, since the quality of locking devices varies greatly).

Laws regulating firearms dealers are consistent with the Second Amendment. In fact, the Heller decision explicitly sanctioned laws imposing conditions on the commercial sale of firearms. 16 Many state and local laws throughout the United States regulate firearms dealers. 17

12

Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Following the Gun: Enforcing Federal Laws Against Firearms Traffickers ix (June 2000).

13 Id. at x.

14 Office of the Inspector General, Evaluation and Inspections Division, U.S. Department of Justice, Inspection of Firearms Dealers by the Bureau of Alcohol, Tobacco, Firearms and Explosives i (July 2004).

15 Americans for Gun Safety Foundation, The Enforcement Gap: Federal Gun Laws Ignored 4 (May 2003).

16 District of Columbia v. Heller, 128 S. Ct. 2783, 2817 (2008).

17 See Legal Community Against Violence, supra note 1, at 149-159.

5

Safe Storage Laws Researchers have found that millions of children live in homes with easily accessible guns. A 2000 study of firearm storage patterns in U.S. homes found that “[o]f the homes with children and firearms, 55% were reported to have 1 or more firearms in an unlocked place,” and 43% reported keeping guns without a trigger lock in an unlocked place. 18 A 2005 study on adult firearm storage practices in U.S. homes found that over 1.69 million children and youth under age 18 are living in homes with loaded and unlocked firearms. 19 The presence of unlocked guns in the home increases the risk of both accidental gun injuries and intentional shootings. One study found that more than 75% of the guns used in youth suicide attempts and unintentional injuries were stored in the residence of the victim, a relative, or a friend. 20 At least two studies have found that the risk of suicide increases in homes where guns are kept loaded and/or unlocked. 21 In October of 2000, the U.S. Secret Service published a study of 37 school shootings in 26 states. That study found that in more than 65% of the cases, the attacker got the gun from his or her own home or that of a relative. 22 Daniel Webster, another expert on this panel, has also provided the Committee with citations to several studies demonstrating that safe storage laws, also known as Child Access Prevention (CAP) laws, help prevent unintentional injuries to children. 23 The Second Emergency Legislation enacted by the District requires individuals to store loaded guns safely if they know or should know that a child 15 years of age or younger might gain access to those weapons.

The District could significantly strengthen its CAP law by making two changes. First, we recommend that the law apply to all firearms – loaded or unloaded – because even an unloaded gun in the hands of a child is extremely dangerous. Second, the law should apply to children who are under the age of 18 (rather than those 15 years of age and 18

Mark A. Schuster et al., Firearm Storage Patterns in U.S. Homes with Children, 90 Am. J. Pub. Health 588, 590 (Apr. 2000).

19 Catherine A. Okoro et al., Prevalence of Household Firearms and Firearm-Storage Practices in the 50 States and the District of Columbia: Findings from the Behavioral Risk Factor Surveillance System, 2002, 116 Pediatrics e370, e371-e372 (Sept. 2005), at http://pediatrics.aappublications.org/cgi/content/full/116/3/e370.

20 David C. Grossman, Donald T. Reay & Stephanie A. Baker, Self-Inflicted and Unintentional Firearm Injuries Among Children and Adolescents: The Source of the Firearm, 153 Arch. Pediatr.

Adolesc. Med. 875, 875 (Aug. 1999).

21 Matthew Miller & David Hemenway, The Relationship Between Firearms and Suicide: A Review of the Literature, 4 Aggression & Violent Behavior 59, 62-65 (1999) (summarizing the findings of multiple studies).

22 United States Secret Service, U.S. Department of the Treasury, An Interim Report on the Prevention of Targeted Violence in Schools 6 (Oct. 2000).

23 See, e.g., Peter Cummings et al., State Gun Safe Storage Laws and Child Mortality Due to Firearms, 278 JAMA 1084, 1084 (Oct. 1997) (finding that in twelve states where CAP laws had been in effect for at least one year, unintentional firearm deaths fell by 23% from 1990-94 among children under 15 years of age).

6

under), because older teenagers are in a particularly high risk age group for gun violence. 24 Laws requiring that firearms be stored safely do not violate the Second Amendment. In fact, in Heller, the Supreme Court stated that its decision should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.” 25 The District’s safe storage law is consistent with Heller because it allows gun owners, as one of the storage options, to carry their guns on their person or within such close proximity that they can readily retrieve and use them as if the guns were carried on their person.

Thus, the law allows for guns to be used in self-defense.

More than two dozen states have enacted laws to help keep guns out of the hands of children. 26 Waiting Periods Laws imposing waiting periods require that a certain number of days elapse between the time a firearm is purchased and is physically transferred to the purchaser. The purpose of a waiting period is to: 1) give law enforcement officials sufficient time to perform a background check; and 2) provide a “cooling off” period to help guard against impulsive acts of violence.

Washington, D.C. currently has a 48-hour waiting period. 27 We recommend that this waiting period be extended (e.g., for a period of at least 5 days). Reasonable waiting periods do not violate the Second Amendment.

Twelve states have enacted waiting periods that apply to the purchase of some or all firearms. Those waiting periods range in length from 24 hours (for the sale of long guns in Illinois) to 14 days (for the sale of all firearms in Hawaii). 28

24

In 2005, 2,623 teens ages 15 through 19 were killed with firearms. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Web-Based Injury Statistics Query & Reporting System (WISQARS), WISQARS Injury Mortality Reports, 1999-2005 (2008), at http://webappa.cdc.gov/sasweb/ncipc/mortrate10_sy.html.

25 District of Columbia v. Heller, supra note 16, at 2820.

26 See Legal Community Against Violence, supra note 1, at 234-240.

27 D.C. Code Ann. § 22-4508.

28 See Legal Community Against Violence, supra note 1, at 134-138.

7

Conclusion LCAV applauds Washington, D.C. for its long history of leadership in the important and challenging area of gun violence prevention. We believe the District has a great opportunity here – to look at its laws with a fresh eye, and to enact strong, legally defensible laws to protect those who live and work in and visit our nation’s Capitol.

LCAV knows that policymakers across the country will be looking to the laws the District enacts as models for their own legislation. We pledge to assist the District in any way we can as it moves forward during this process.

Thank you very much for allowing me to address you today.

8